Comte v. O'Neil

• Decision Date: 30 July 1970
• Docket Number: Gen. No. 11183
• Citation: 125 Ill.App.2d 450,261 N.E.2d 21
• Parties: Ellen COMTE, Plaintiff-Appellant, v. George O'NEIL, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 21

261 N.E.2d 21

125 Ill.App.2d 450

Ellen COMTE, Plaintiff-Appellant, v. George O'NEIL, Defendant-Appellee.

Gen. No. 11183.

Appellate Court of Illinois, Fourth District.

July 30, 1970.

Rehearing Denied Aug. 27, 1970.

Elmo E. Koos, Peoria, for appellant.

Costigan & Wollrab, Bloomington, for appellee.

SMITH, Justice.

Plaintiff appeals from a judgment on a verdict directed in favor of the defendant at the close of the plaintiff's evidence. The trial court held that the evidence was insufficient to raise a jury question of negligence on the part of the defendant either during a Caesarean section performed by him or his post-operative treatment. We agree and the judgment must be affirmed.

The evidence produced was that of the plaintiff nad of defendant doctor called as an adverse witness under § 60 of the Civil Practice Act. Ill.Rev.Stat.1967, ch. 110, § 60. The Caesarean section was uneventful. The negligence charged is that (1) the defendant negligently permitted the cecum, a portion of the large intestine, to become 'kinked' during the operation thereby preventing excretion or (2) failed to diagnose the condition and call in a specialist until four days after the Caesarean operation. The evidence is undisputed that at some time the cecum did become kinked, but is silent as to whether it was before, during or after the Caesarean, and that not one but two successive operations were required before the ailment was corrected.

Each party accepts the principle that one calling a witness under § 60 of the Civil Practice Act does not vouch for his veracity and may contradict such testimony but nevertheless is bound by such uncontradicted and unrebutted testimony. Kapraun v. Kapraun, 12 Ill.2d 348, 146 N.E.2d 7. The parties likewise recognized the rule in a malpractice suit that the plaintiff must establish standards of care by expert testimony and that the injuries suffered resulted from a negligent failure to follow such standards. Lundahl v. Rockford Memorial Hospital Association, 93 Ill.App.2d 461, 235 N.E.2d 671, and cases cited therein. Accepted exceptions to this rule are referred to as the 'common knowledge' rule or the 'gross negligence' rule, that is, where the physician's conduct is so palpably negligent or the treatment is so common that a layman could readily appraise it. Scardina v. Colletti, 63 Ill.App.2d 481, 211 N.E.2d 762.

It is the plaintiff's position that the defendant's testimony is that of an expert and establishes a standard of care, or, in the alternative, that the facts in this case place it in an area of common knowledge or gross negligence for jury determination. In our judgment, the record supports neither position.

The defendant testified that he specialized in obstetrics and gynecology, had performed a previous Caesarean on this lady in 1953 and then 'the patient evidenced a certain amount of distention of the abdomen. This complication was terminated by the fourth day.' There was no subsequent surgery then to correct a kinked cecum or any bowel disorders. At the time of this second Caesarean (1956), the defendant had delivered some 6,000 children and about 5 percent of them were delivered by Caesarean section. The defendant averaged about ten such operations a year. The instant operation was performed on December 25. The defendant testified that 'on the 27th I did not consider that she had more of a problem with her bowels than anyone would at the corresponding stage of operation. On the 28th, no X-rays were ordered because distention was not greater than one occasionally...